Pathology writ large in Departmental Adjudication Drafting of Adjudication Orders Requires Training
BEFORE loyal stalwarts of the Department ready their armoury against me for the above unpardonable remarks, let me hasten to clarify that those are not my remarks - I only quote from a recent judgement of the CESTAT in which a Commissioner was castigated for his perverse order and the Tribunal even imposed a cost of Rs. 2500/-.
In an order running into 33 paras, paras 1 to 29 chronologically enumerated the facts relating to initiation of proceedings, contentions of the assessee, the case of the Department and the defence by the assessee along with material marshaled and the precedents cited by the assessee. The contribution of the learned Adjudicating Authority to the adjudication process was confined to paras 30 to 32. The tribunal noticed that there was no material contribution, in terms of analyses or reasons. The Tribunal observed,
1. In an adjudication order, verbiage and prolixity is no substitute for quality.
2. The conclusions recorded are bereft of any reasons.
3. The impugned order is wholly perverse and a sub-standard exhibit of adjudication.
4. Despite valiant efforts, learned AR was unable to identify even a scintilla of reason by the Adjudicating Authority, for predicating the bald conclusions set out in the impugned order.
5. Adjudication and drafting of adjudication orders requires training.
6. Incompetent departmental adjudication ill serves the interests of the State.
7. Apart from accentuating the appellate docket load, such casual orders contribute to faith deficit in the process of departmental education and imperil the due process of law.
8. The appropriate authorities may consider this pathology writ large in departmental adjudication.
A copy of the judgement is marked to the CBEC and Revenue Secretary.
Will NACEN arrange a special course for adjudicators? One thing that perhaps the CESTAT has not understood is that rarely does a Commissioner write his own adjudication orders. He instructs a Superintendent to confirm the demand and many adjudicators don't even bother to read the draft orders put up to them. One adjudicating Authority told us that a particular para in his order, which came to be adversely commented upon by a High Court, was put there by his Superintendent and it could have been avoided!
No amount of strictures, no amount of costs will deter the Tax Authorities from passing such orders as long as they are determined to pass orders in favour of Revenue, come what may. “Why should I take the risk? I will never get punished for passing an order in favour of Revenue is the attitude.” Departmental Adjudication and appellate mechanism has become a farce and is converted into a mockery of the judicial system. The only remedy is to remove the adjudication and appellate machinery from Departmental officers and they should be handed over to an independent agency or court. Maybe we should have a sub-CESTAT, which will decide all the Original matters.
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